EXHIBIT 10.15
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (the “Agreement”) is entered into as of April
8, 2009 (the “Effective Date”) by and between Peter E.
Williams III (“Executive”) and Saba Software, Inc., a
Delaware corporation (the “Company”), and amends and
restates in its entirety that Employment Agreement dated as of
February 1, 2006 and that Amendment to Employment Agreement
dated as of July 12, 2007 (as amended, the “Existing
Agreement”).
R E C I T A L
S
A . Executive and the Company
entered into the Existing Agreement to set forth the terms of
Executive’s employment with the Company.
B. The Company believes that
maintaining sound management is essential to protect and enhance
the best interests of the Company and its stockholders.
C. The Company desires assurance of
the continued association and services of Executive in order to
retain Executive’s experience, skills, abilities, background
and knowledge, and is willing to engage Executive’s services
on the terms and conditions set forth in this Agreement.
E. Executive desires to continue to
be in the employ of the Company, and is willing to accept such
employment on the terms and conditions set forth in this
Agreement.
F. Executive and the Company desire
to amend and restate the Existing Agreement upon the terms and
conditions more fully set forth herein.
A G R E E M E N
T
NOW, THEREFORE, based on the
foregoing recitals and in consideration of the commitments set
forth below, Executive and the Company agree as follows:
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1.
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Term,
Position, Duties and Responsibilities
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1.1. Term .
The Company hereby employs Executive
to render services to the Company in the position of Executive Vice
President, Corporate Development, reporting directly to the Chief
Executive Officer of the Company, for the period commencing on the
Effective Date and ending on the date Executive’s employment
is terminated under this Agreement (the “Term”). The
Company and Executive hereby acknowledge that either of them may
terminate Executive’s term of Employment for any reason or no
reason at all.
1.2. Position .
The duties of this position shall
include such duties and responsibilities as are reasonably assigned
to Executive by the Chief Executive Officer, including but not
limited to those customarily performed by executive vice
presidents, corporate development of similarly situated
corporations. Executive agrees to serve in a similar capacity for
the benefit of any of the Company’s direct or indirect,
wholly-owned or partially-owned subsidiaries or affiliates.
Additionally, Executive shall serve in such other capacity or
capacities
as the Chief Executive Officer may
from time to time prescribe. During his employment by the Company,
Executive shall, subject to Section 1.3, devote his full
energies, interest, abilities and productive time to the proper and
efficient performance of his duties under this
Agreement.
1.3. Other Activities
. Except upon the prior
written consent of the Chief Executive Officer of the Company,
Executive will not (i) accept any other employment, or
(ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is
or may be in conflict with, or that might place Executive in a
conflicting position to that of, the Company. Notwithstanding the
foregoing, Executive shall be permitted to engage in occasional
professional or charitable activities outside the scope of his
employment with the Company so long as such activities (A) do
not conflict with the actual or proposed business of the Company or
any of its subsidiaries or affiliates, and (B) do not affect
the performance of his duties hereunder. In addition, subject to
the prior written consent of the Chief Executive Officer and the
Board of Directors of the Company and subject to Executive’s
fiduciary duties to the Company, Executive shall be permitted to
serve as a director of other corporations provided that their
businesses are not competitive with the actual or proposed business
of the Company or any of its subsidiaries or affiliates and
provided further that Executive’s service as a director of
such other corporations does not interfere with his performance of
his duties hereunder. Any such prior written consent may be
subsequently revoked in the event that the Board of Directors
determines, in good faith, that Executive’s position as a
director of any such other corporation has developed into a
conflict of interest.
1.4. Proprietary
Information . Executive recognizes that his employment with
the Company will involve contact with information of substantial
value to the Company, which is not generally known in the trade,
and which gives the Company an advantage over its competitors who
do not know or use it. Executive has previously executed and
delivered to the Company, a copy of the Company’s standard
form of Employee Proprietary Information and Inventions Agreement
(the “Employee Proprietary Information and Inventions
Agreement”).
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2.
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Compensation
of Executive
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2.1. Base Salary
. In consideration of the
services to be rendered under this Agreement, while employed by the
Company, Company shall pay Executive an initial base annual salary
of two hundred sixty-five thousand dollars ($265,000.00), less
standard deductions and withholdings, payable in regular periodic
payments in accordance with Company payroll policy. Such salary
shall be prorated for any partial month of employment on the basis
of a 30-day fiscal month. Such base salary shall be subject to
annual review by the Board of Directors in consultation with the
Chief Executive Officer.
2.2. Bonus .
Executive will be eligible to
receive bonuses totaling 50% of his base salary annually (such
annual amount, the “Target Bonus”), the exact amount of
each such bonus to be determined by the Board of Directors in
consultation with the Chief Executive Officer based upon Executive
achieving certain performance criteria and the Company achieving
specific financial goals, in each case to be determined by the
Board of Directors in consultation with the Chief Executive
Officer. Any such bonus shall be payable at the direction of the
Board of Directors either after the end of the fiscal year or
quarterly after the end of each fiscal quarter,
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and shall be
prorated for partial fiscal periods. Such bonuses shall in no event
be paid later than 2 1 / 2 months after the close of the
Company’s fiscal year in which such bonus was earned. In
addition, Executive shall be eligible for such additional bonuses
as may be awarded by the Board of Directors in its sole discretion
from time to time in consultation with the Chief Executive
Officer.
2.3. Stock Option
. Executive has been and
may in the future be granted stock options to purchase shares of
the Company’s Common Stock at the market price in effect on
the date the Board of Directors approves the grant pursuant to the
Company’s standard form of Stock Option Agreement to be
entered into by and between Executive and the Company (the
“Stock Option Agreement”). Unless otherwise agreed by
the Board, future stock options will vest over the course of four
(4) years in 16 equal quarterly installments. Notwithstanding
anything set forth in any existing stock options or, unless any
future stock option contains language expressly modifying the
provisions of this Agreement, any future stock options, the
following additional provisions shall apply:
(a) Executive shall have until the
first to occur of the following to exercise any stock option held
by Executive on the date of termination of Executive’s
employment: (i) the expiration of the maximum term of such
option, (ii) the termination of the option in connection with
a Change in Control or similar event as provided in the applicable
option agreement and/or plan under which the option was granted, or
(iii) six (6) months from the date of termination of
Executive’s employment.
(b) Immediately prior to the
specified effective date of a Change of Control (as defined below)
pursuant to which a portion of any stock option is neither Assumed
(as defined below) nor Replaced (as defined below), such portion of
the stock option that is neither Assumed nor Replaced shall
automatically become fully vested and exercisable for all of the
shares at the time represented by such portion of the stock option;
provided that Executive’s employment has not terminated. In
such event, to the extent not exercised prior to the consummation
of such Change of Control, such portion of the stock option shall
terminate upon closing of the Change of Control pursuant to the
terms of the Company’s applicable Stock Incentive Plan. For
the purpose of this Section, the terms below shall have the
following meanings:
“Assumed” means that
pursuant to a Change of Control either (i) the stock option is
expressly affirmed by the Company or (ii) the contractual
obligations represented by the stock option are expressly assumed
(and not simply by operation of law) by the successor entity or its
parent in connection with the Change of Control with appropriate
adjustments to the number and type of securities of the successor
entity or its parent subject to the stock option and the exercise
or purchase price thereof which at least preserves the compensation
element of the stock option existing at the time of the Change of
Control as determined in accordance with the instruments evidencing
the agreement to assume the stock option.
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“Replaced” means that
pursuant to a Change of Control the stock option is replaced with a
comparable stock award or a cash incentive program of the Company,
the successor entity (if applicable) or parent of either of them
which preserves the compensation element of such Award existing at
the time of the Change of Control and provides for subsequent
payout in accordance with the same (or a more favorable) vesting
schedule applicable to such stock option.
2.4. Benefits .
Executive shall be entitled to
participate in the Company’s group medical, dental, life
insurance, 401(k), deferred compensation or other benefit plans and
programs on the same terms and conditions as other members of the
Company’s senior executive management. Executive shall be
provided such perquisites of employment, including at least four
(4) weeks paid vacation, and all paid holidays and sick leave
as are provided to all other members of the Company’s senior
executive management. Executive shall be entitled to reimbursement
of all reasonable expenses incurred by Executive in the performance
of his duties hereunder, in accordance with the policies and
procedures established by the Company from time to time, and as may
be amended from time to time.
Company or Executive may terminate
Executive’s employment with Company at any time for any
reason, including no reason at all, notwithstanding anything to the
contrary contained in or arising from any statements, policies, or
practices of Company relating to the employment, discipline, or
termination of its employees. This at-will employment relationship
cannot be changed except in writing signed by a duly authorized
officer of the Company other than Executive. This Section 3
shall survive any termination or expiration of this
Agreement.
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4.
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Termination
of Employment
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4.1. Intentionally Omitted
.
4.2. Termination by the
Company for Cause . In the event that the Company terminates
Executive’s employment for Cause, the Company shall pay
Executive all base salary due and owing and all other accrued but
unpaid benefits (e.g., accrued vacation) through the last day
actually worked and thereafter the Company’s obligations
under this Agreement shall terminate. For the purposes of this
Agreement, termination shall be for “Cause” if
(i) Executive refuses or fails to act in accordance with any
lawful order or instruction of the Chief Executive Officer, and
such refusal or failure to act has not been cured within 30 days of
notice of such disobedience, (ii) Executive fails to devote
reasonable attention and time during normal business hours to the
business affairs of the Company or Executive is reasonably
determined by the Board of Directors to have been unfit (other than
as a result of an Incapacity), unavailable for service (other than
as a result of an Incapacity) or grossly negligent in connection
with the performance of his duties on behalf of the Company, which
unfitness, unavailability or gross negligence has not been cured
within 30 days of notice of the same; (iii) Executive is
reasonably determined by the Board of Directors to have committed a
material act of dishonesty or willful misconduct or to have acted
in bad faith to the material detriment of the Company in connection
with the
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performance of his duties on behalf
of the Company; (iv) Executive is convicted of a felony or
other crime involving dishonesty, breach of trust, moral turpitude
or physical harm to any person, or (v) Executive materially
breaches any agreement with the Company which breach has not been
cured within 30 days notice of the same. For purposes of this
Agreement, the term “without Cause” shall mean
termination of Executive’s employment for reasons other than
for “Cause.”
4.3. Termination by the
Company without Cause or Termination by Executive .
In the event that the Company
terminates Executive’s employment without Cause or Executive
terminates his employment for any reason or no reason at all, and
in either case a Separation (as defined below) occurs, the Company
shall pay Executive all base salary due and owing and all other
accrued but unpaid benefits (e.g., accrued vacation) through the
last day actually worked, and Executive shall be entitled to
receive the severance payments and benefits set forth below in this
Section 4.3; provided, however, that such severance and
benefits are conditioned on Executive’s execution and
non-revocation of a release agreement, the form of which is
attached hereto as Exhibit A , and thereafter the
Company’s obligations under this Agreement shall terminate.
Executive shall execute and return such release agreement no later
than sixty (60) days from the date of Executive’s
Separation (the “Release Date”). For purposes of this
Agreement,
The term “Separation”
shall mean a “separation from service,” as defined in
the regulations under Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”);
Termination shall be for “Good
Reason” if (i) there is a material diminution of
Executive’s responsibilities with the Company, or a material
change in Executive’s reporting responsibilities or title, in
each case without Executive’s consent; (ii) there is a
material reduction by the Company in Executive’s annual base
salary or target compensation then in effect without
Executive’s consent; (iii) Executive’s principal
work location is relocated outside of the San Francisco Bay Area
without Executive’s consent or (iv) there is a Change of
Control. Executive agrees that he may be required to travel from
time to time as required by the Company’s business and that
such travel shall not constitute grounds for Executive to terminate
his employment for Good Reason. A condition shall not be considered
“Good Reason” unless Executive gives the Company
written notice of such condition within ninety (90) days after
such condition comes into existence and the Company fails to remedy
such condition within thirty (30) days after receiving
Executive’s written notice (if capable of remedy).
“Change of Control”
means the occurrence of any of the following events:
(i) The sale, exchange, lease or
other disposition or transfer of all or substantially all of the
consolidated assets of the Company to a person or group (as such
terms are defined or described in Sections 3(a)(9) and 13(d)(3) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) which will continue the business of
the Company in the future; or
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(ii) A merger or consolidation
involving the Company in which the shareholders of the Company
immediately prior to such merger or consolidation are not the
beneficial owners (within the meaning of Rules 13d-3 and 13d-5
promulgated under the Exchange Act) of more than 50% of the total
voting power of the outstanding voting securities of the
corporation resulting from such transaction in substantially the
same proportion as their ownership of the total voting power of the
outstanding voting securities of the Company immediately prior to
such merger or consolidation; or
(iii) The acquisition of beneficial
ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated
under the Exchange Act) of at least 50% of the total voting power
of the outstanding voting securities of the Company by a person or
group (as such terms are defined or described in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act).
4.3.1. Target Bonus and Base
Salary . On the date
of the termination of Executive’s employment, the Company
shall pay to Executive, or to Executive’s beneficiaries or
estate as appropriate, in a single lump-sum payment, subject to
standard deductions and withholdings, Executive’s Target
Bonus for any partially completed bonus period, as if the
applicable performance criteria and Company financial goals had
been achieved completely, pro rated based on the number of days
actually elapsed through the date of termination in the bonus
period in which such termination occurs. In addition, the Company
shall pay to Executive, or to Executive’s beneficiaries or
estate, as appropriate, the sum of (i) an amount equal to that
number of months of Executive’s then current base salary
equal to the sum of six (6) months plus one month for every
twelve month period Executive has been employed by the Company
prior to the date of termination (which sum shall not exceed twelve
(12) months) (collectively, the “Severance
Months”), and (ii) an amount equal to the product of
(x) the quotient of the number of Severance Months divided by
12, and (y) the Target Bonus amount (the “Bonus
Severance Amount”), less all applicable standard deductions
and withholdings. Such amounts payable in the preceding sentence
shall be payable in the form of salary continuation (with amounts
attributable to the Target Bonus prorated monthly). Subject to
timely receipt by the Company of the executed release agreement,
the first payment of any such salary continuation shall be made
within ten (10) days after the Release Date and shall include
any salary continuation payments (including amounts attributable to
the Target Bonus) that accrued to Executive post-termination of
employment but that were not paid pending receipt of the executed
release agreement.
4.3.2. Acceleration of Vesting
of Stock Option .
(a) With respect to stock options
granted to Executive prior to July 12, 2007, on the date of
termination of Executive’s employment, 100% of the shares
subject to any stock option then held by Executive, including
without limitation, the options described in Section 2.3,
shall vest and become immediately exercisable. In addition,
notwithstanding the terms of any option award or agreement to the
contrary, Executive shall have until the first to occur of the
following to exercise any stock option held by Executive on the
date of termination of Executive’s employment: (i) the
expiration of the maximum term of such option, (ii) the
termination of the
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option in connection with a Change
in Control or similar event as provided in the applicable option
agreement and/or plan under which the option was granted, or
(iii) three (3) years from the date of termination of
Executive’s employment.
(b) With respect to stock options
granted to Executive after July 12, 2007, in the event that
Executive’s employment with the Company is terminated by the
Company without Cause or by Executive for Good Reason, 100% of the
shares subject to any stock option then held by Executive,
including without limitation, the options described in
Section 2.3, shall vest and become immediately
exercisable.
4.3.3. Group Medical
Coverage . The
Company shall, following the Executive’s timely election,
provide the Executive with continued coverage for one year after
termination of Executive’s employment under the
Company’s group health insurance plans in effect upon
termination of Executive’s employment without Cause or for
Good Reason in accordance with the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), at
no cost to Executive. If COBRA or similar benefits are not
available by law during any portion of the remainder of such one
year period, then the Company shall pay Executive each
mon